§ 15-11-603. Antilapse; Deceased Devisee; Class Gifts

1. Definitions. As used in this section, unless the context otherwise requires:
   1. “Alternative devise” means a devise that is expressly created by the will and, under the terms of the will, can take effect instead of another devise on the happening of one or more events, including survival of the testator or failure to survive the testator, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general, pass under the residuary clause.
   2. “Class member” includes an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had he or she survived the testator.
   3. “Devise” includes an alternative devise, a devise in the form of a class gift, and an exercise of a power of appointment.
   4. “Devisee” includes (i) a class member if the devise is in the form of a class gift, (ii) the beneficiary of a trust but not the trustee, (iii) an individual or class member who was deceased at the time the testator executed his or her will as well as an individual or class member who was then living but who failed to survive the testator, and (iv) an appointee under a power of appointment exercised by the testator’s will.
   5. (Reserved)
   6. “Surviving devisee” or “surviving descendant” means a devisee or a descendant who neither predeceased the testator nor is deemed to have predeceased the testator under section 15-11-702.
   7. “Testator” includes the donee of a power of appointment if the power is exercised in the testator’s will.
2. Substitute gift. If a devisee fails to survive the testator and is a grandparent or a descendant of a grandparent of either the testator or the donor of a power of appointment exercised by the testator’s will, the following apply:
   1. Except as provided in paragraph (d) of this subsection (2), if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee’s surviving descendants. They take per capita at each generation the property to which the devisee would have been entitled had the devisee survived the testator.
   2. Except as provided in paragraph (d) of this subsection (2), if the devise is in the form of a class gift, other than a devise to “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “relatives”, or “family”, or a class described by language of similar import, a substitute gift is created in the deceased devisee’s or devisees’ surviving descendants. The property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which he or she would have been entitled had the deceased devisees survived the testator. Each deceased devisee’s surviving descendants who are substituted for the deceased devisee takes per capita at each generation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. For the purposes of this paragraph (b), “deceased devisee” means a class member who failed to survive the testator and left one or more surviving descendants.
   3. For purposes of this part 6, words of survivorship, such as in a devise to an individual “if he survives me” or in a devise to “my surviving children”, are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. The use of language such as “and if he does not survive me the gift shall lapse” or “to A and not to A’s descendants” shall be sufficient indication of an intent contrary to the application of this section.
   4. If the will creates an alternative devise with respect to a devise for which a substitute gift is created by paragraph (a) or (b) of this subsection (2), the substitute gift is superseded by the alternative devise only if an expressly designated devisee of the alternative devise is entitled to take under the will.
   5. Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be substituted for the appointee under this section, whether or not the descendant is an object of the power.
3. Dispositions under separate writing. The provisions of this section shall not apply to dispositions of tangible personal property made under section 15-11-513.
4. More than one substitute gift; which one takes. If, under subsection (2) of this section, substitute gifts are created and not superseded with respect to more than one devise and the devises are alternative devises, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
   1. Except as provided in paragraph (b) of this subsection (4), the devised property passes under the primary substitute gift.
   2. If there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift.
   3. In this subsection (4):
      1. “Primary devise” means the devise that would have taken effect had all the deceased devisees of the alternative devises who left surviving descendants survived the testator.
      2. “Primary substitute gift” means the substitute gift created with respect to the primary devise.
      3. “Younger-generation devise” means a devise that:
         1. Is to a descendant of a devisee of the primary devise;
         2. Is an alternative devise with respect to the primary devise;
         3. Is a devise for which a substitute gift is created; and
         4. Would have taken effect had all the deceased devisees who left surviving descendants survived the testator except the deceased devisee or devisees of the primary devise.
      4. “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation devise.

Source: L. 94: Entire part R&RE, p. 1004, § 3, effective July 1, 1995. L. 95: (2)(a) and (2)(b) amended, p. 356, § 7, effective July 1.

Editor’s note: This section is similar to former § 15-11-605 as it existed prior to 1995.